Charlottetown Accord

The Charlottetown Accord of 1992 was a failed, joint attempt by the government of Prime Minister Brian Mulroney and all 10 provincial premiers to amend the Canadian Constitution, specifically to obtain Quebec's consent to the Constitution Act of 1982.

The Charlottetown Accord of 1992 was a failed, joint attempt by the government of Prime Minister Brian Mulroney and all 10 provincial premiers to amend the Canadian Constitution, specifically to obtain Quebec's consent to the Constitution Act of 1982. The Accord would have also decentralized many federal powers to the provinces, and it was ultimately rejected by Canadian voters in a referendum.

Quebec and the Constitution

Following the failure of the Meech Lake Accord in 1990, Mulroney's Conservative government tried a second time to solve the political dilemma created in 1982 when Canada patriated and amended its Constitution without the consent of the government of Quebec. Mulroney appointed former Prime Minister Joe Clark as minister of constitutional affairs, and assigned him the task of forging a new agreement to break the constitutional deadlock with Quebec.

A long period of national debate ensued about the nature of Confederation, and about the arcane details of constitutional reform. It was a time of intense political jockeying, as various governments and dozens of special interest groups put forward their desires and demands for a renewed Constitution. Four bodies were appointed to formally engage in these discussions — parliamentary and extra-parliamentary bodies within Quebec and nationally. The Québec panels were the Allaire Committee and the Belanger-Campeau Committee; and nationally they were the Beaudoin-Edwards Committee and the Spicer Commission. Their studies led to various reports including the federal document Shaping Canada's Future Together.

Division of Powers

The Accord dealt with a number of constitutional issues. For example, on the division of legislative powers, it provided for exclusive provincial jurisdiction over forestry, mining and some other areas. It also required the federal government to negotiate with the provinces to harmonize policy in areas such as telecommunications, labour and training, regional development, and immigration.

Two rarely-used, centralizing features in the Constitution are the federal power of reservation and Disallowance, and the declaratory power in section 92(10)(c) of the Constitution Act of 1867. Disallowance gives the federal Cabinet the power to dismiss any provincial legislative Act within one year. The Accord would have abolished this federal power.

The declaratory power allows Parliament to declare certain works or projects, even provincial ones, to be for the "Advantage of Canada," and therefore part of the national infrastructure — thus giving the federal government jurisdiction over the work. The Accord would have subjected any such declarations to provincial consent.

Federal-Provincial Spending

One important feature of the Accord related to the use of the federal spending power. Because Parliament has far greater taxation authority than the provinces, it also has the greater spending authority. Over the years, this has led to financing arrangements under which the federal government pays for, through transfer payments and other fiscal devices, all or part of programs that otherwise would fall within provincial authority, such as medicare, social services, advanced education, etc. In so doing, the federal government has typically attached conditions on this financing arrangement. One such example is the ban on extra billing by doctors, as expressed in the Canada Health Act. Typically, any province that authorized a program or activity in contravention of these conditions would have to pay a financial penalty. The Charlottetown Accord allowed the provinces to establish their own individual programs in these areas, with guarantees of federal compensation as long as the provincial programs conformed to national standards.

The Accord also afforded the provinces a constitutional right of compensation in the event a province opted out of any constitutional amendment that transferred provincial powers to the federal government. The need for compensation would arise because the province opting out would need to fund its own programs. Had the federal government exercised the power obtained, it would have had to have provided the funding.

The Accord also included an enhancement of Canada's social and economic union. It envisaged a "social charter" to seek and promote health care, welfare, education, environmental protection, collective bargaining and other social objectives. It also envisaged economic goals such as internal free trade among the provinces, with the elimination of barriers to the free flow of goods, services, labour and capital, and other provisions related to employment, standard of living and development.

Aboriginal Self-Government

The Accord addressed the issue of Aboriginal self-government but provided for a waiting period of three years before the concept would be recognized in law. It also dealt with Aboriginal representation in Parliament.

Quebec a Distinct Society

The Accord also contained the so-called "Canada Clause" which set out the values that define the nature of the Canadian character. One of those values was the recognition that Québec is a distinct society within Canada. Other values included egalitarianism, diversity and other qualities of Canadian society. This provision, like the present section 27 of the Charter of Rights and Freedoms relating to multiculturalism, is an interpretive section, directing the courts to interpret the Constitution with these constitutionally entrenched values in mind.

Parliamentary Reform

The Accord sought to make various changes in Canadian governance. For example, the Supreme Court of Canada, its composition and the appointment process were to be constitutionally entrenched. The Senate would be changed to reflect ongoing demands that it become "Triple-E" — equal, elected and effective. Each province would have an equal number of senators, and members would be elected either by the legislature of each province or at large within each province. The Accord reduced the powers of the Senate and, on some legislative matters required a so-called "double majority" — a majority of the senators generally and a majority of francophone senators.

Changes were also proposed for the House of Commons. Following a redistribution, the number of seats in the House would be increased. In addition, any redistribution would require that a province could not have fewer seats than any other province with a smaller population. However, the province of Québec would be guaranteed at least one quarter of all the seats in the House.

The Accord formally institutionalized the federal/provincial/territorial consultative process, allowing for Aboriginal inclusion in the process in appropriate circumstances. The Accord also increased the number of items in the existing amending formula that require unanimous consent for a constitutional amendment.

Referendum

The Accord had the formal support of the federal government and all 10 provincial governments, meaning it could have been legally instituted as a constitutional amendment. However, the Mulroney government — still smarting from criticism that the previous Meech Lake Accord had been put together in the political backrooms, without public scrutiny — chose to submit the Charlottetown Accord to a national referendum.

British Columbia, Alberta and Québec had referendum legislation of their own, however, BC and Alberta decided to participate in the federal referendum. The result was that two referenda, one federal and one in Quebec, asked the same question on the same day, 26 October 1992: "Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?"

Nationally, 54.3 per cent of the votes cast opposed the Charlottetown Accord. It did, however, receive approval in New Brunswick, Newfoundland, Prince Edward Island, the Northwest Territories and, by the narrowest of margins (50.1 per cent) in Ontario. In Quebec the result was 56.7 per cent against.

Legacy

After the failure of the Meech Lake process, Canadians again could not reach a national consensus on constitutional reform. Still, the defeat of the Charlottetown Accord was interpreted as much a protest by Canadians against the country's "political class"— and against the deeply unpopular Mulroney government — as a vote against the Accord itself.

Ironically, two key topics of the Accord would continue to be hotly debated many years after its death: interprovincial trade barriers and Senate reform. The federal government, the provinces and territories signed the Agreement on Internal Trade in 1994. But this agreement has had only limited success in reducing internal trade barriers. And by 2014, serious democratic changes had still not come to the Senate, even though many Canadians believed the Upper House of Parliament should either be reformed or abolished.

As for the Quebec question, in 2006 the House of Commons passed a motion recognizing francophone Quebecers as a nation within a united Canada. However, as of 2014 no further efforts had been made to re-open formal negotiations to obtain the Quebec government's official consent to the 1982 Constitution.